United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE.
Robert Earl Carter, represented by counsel, filed a motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255 (Docket Entry No. 73). Pending before the Court
are the following additional motions:
(1) The Government's motion and supplemental motion to
dismiss (Docket Entries No. 85, 86), to which Defendant filed
a response (Docket Entry No. 87);
(2) The Government's untimely Supplemental Response,
Motion for Summary Judgment on the Pleadings and Supplemental
Motion for Summary Judgment and Memorandum in Support (the
"Supplemental Response") (Docket Entry No. 96),
Defendant's Motion to Strike the Supplemental Response as
untimely and filed without leave of court (Docket Entry No.
100), and the Government's Motion for Leave to File the
Supplemental Response (Docket Entry No. 101);
(3) The Government's motion for unredacted copies of
Defendant's habeas exhibits (Docket Entry No. 96);
(4) Defendant's motion for Brady materials
relevant to his claim for prosecutorial misconduct (Docket
Entry No. 102), to which the Government filed a response
(Docket Entry No. 104); and
(5) The Government's motion to quash Defendant's
subpoena of AUSA Daniel C. Rodriguez for his appearance and
testimony as a witness at the evidentiary hearing (Docket
Entry No. 103).
BACKGROUND AND CLAIMS
September 9, 2014, Defendant executed a written plea
agreement and pleaded guilty to making false statements in
his 2009 federal income tax return. Following a lengthy
sentencing hearing on January 13, 2015, the Court sentenced
Defendant to 36 months in prison to be followed by one year
of supervised release. Defendant moved to delay entry of
judgment and for a new trial/sentencing hearing. The Court
denied the motions and entered judgment on March 31, 2015. No
appeal was taken.
raises the following section 2255 claims for a new sentencing
(1) Counsel was ineffective at sentencing;
(2) The Government committed prosecutorial misconduct at
(3) Cumulative error based on the above two claims. The
Government argues that these claims are without merit.
there are four grounds upon which a defendant may move to
vacate, set aside, or correct his sentence pursuant to
section 2255: (1) the imposition of a sentence in violation
of the Constitution or the laws of the United States; (2) a
lack of jurisdiction of the district court that imposed the
sentence; (3) the imposition of a sentence in excess of the
maximum authorized by law; and (4) the sentence is otherwise
subject to collateral attack. 2&U.S.C. §2255;
United States v. Placente, SI F.3d 555,
55&(5ihCir. 1996). Section 2255 is an extraordinary
measure, and cannot be used for errors that are not
constitutional or jurisdictional if those errors could have
been raised on direct appeal. United States v.
Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error
is not of constitutional or jurisdictional magnitude, the
movant must show the error could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice. United States v. Smith, 32
F.3d 194, 196 (5th Cir. 1994).
Government presented the following statement of proof at the
On or about April 4, 2011, in the Houston Division of the
Southern District of Texas, [Defendant], a resident of the
Houston Division of the Southern District of Texas, did
willfully make and subscribe a U.S. individual income tax
return Form 1040 with attached schedules for the calendar
year 2009, which was verified by a written declaration that
it was made under the penalties of perjury and was filed with
the Internal Revenue Service which said income tax return he
did not believe to be true and correct. And that the said
return reported on Line 22 of Form 1040, U.S. individual tax
return 2009, total income of $276, 270, whereas he then and
there well knew and believed he received total income in
addition to that heretofore stated, all in violation of Title
26, United States Code, § 7206(1).
This investigation originated when NASA OIG contacted IRS
criminal investigation. After receiving a suspected
irregularity referral on Enterprise Advisory Services, Inc.,
herein after EASI, which is located on 6671 Southwest
Freeway, Suite 800 Houston, Texas, 77074, which performs as a
prime contractor to NASA. The referral alleged consulting
irregularities and fraudulent billing.
The evidence in this investigation has established that
[Defendant] knowingly defrauded the Internal Revenue Service
by diverting income from his company EASI, through his
daughter, Deralyn R. Miller Company, Deralyn Miller, Inc.,
herein after DMI, by committing tax fraud.
The investigation established that [Defendant] used DMI to
avoid reported income to the Internal Revenue Service that
[he] had received in the form of bonuses. The evidence
establishes [Defendant] knowingly and willfully made and
subscribed a 2009 individual federal income tax return, which
was false as to a material matter, and that he intentionally
and willfully underreported his total taxable income. This
resulted in his intentional omission of $504, 821 in personal
[Defendant] is the founder, sole owner, and president and CEO
of EASI. Deralyn R. Miller is the president and sole owner of
DMI. Investigation established [Defendant] directed that
$309, 821 in bonus income he received in 2009 for many
[sic] EASI be converted into a check payable
directly to DMI from EASI.
Approximately one month after Miller deposited this EASI
check into her business account, she returned approximately
90 percent of the monies directly to [Defendant] using a
Cashier's Check made payable to [Defendant]. Bank records
reflect Miller retained $23, 000, and returned the remaining
$286, 821 to [Defendant]. Ultimately, neither [Defendant] nor
Miller reported any of [Defendant's] $309, 821 bonus on
their personal income tax returns, nor did DMI as required
File Form 1120S, U.S. Corporate Income TaxReturn for the 2009
Pursuant to U.S. tax law, [Defendant] must pay federal income
tax on any personal income earned before he may provide any
of the monies to another individual or entity. In this case,
the entire $309, 821 was personal income to [Defendant] in
the form of a bonus from EASI, and therefore monies [he] was
required to report in his annual individual federal income
Investigation further established that EASI issued
[Defendant] another bonus check for $195, 000 on December 22,
2009, which [he] deposited into his personal savings account.
EASI reported this 195, 000-dollar payment in their general
ledger as executive variable pay. A financial incentive
program recognizing the contributions employees made to EASI
success [sic]. In short, a euphemism used by EASI
for bonus back but did not report the income in [his] W-2
Form or issue [him] a Form 1099 miscellaneous income in 2009
Because EASI recorded this bonus payment as a reimbursement
payment to [Defendant] [sic]. [Defendant] similarly
did not, as required, report this 195, 000-dollar personal
income bonus on his 2009 individual federal income tax
return. Consequently, [Defendant] willfully and intentionally
failed to report personal income of $504, 821 on his 2009
individual federal tax return in violation of federal law.
(Docket Entry No. 83, pp. 8-12, short exchanges between Court
and prosecutor omitted.)
admitted on the record that the Government's statement of
proof was true. M, pp. 12, 18. In the written plea agreement,
Defendant stipulated and agreed that he failed to report
personal income of $171, 250.00 in 2007, $237, 500.00 in
2008, $504, 821.00 in 2009, and $195, 000.00 in 2010 in his
federal individual income tax returns for those tax years,
resulting in total unreported income of $1, 108, 571.00 from
2007 to 2010. Id., p. 13. During allocution, defense
counsel informed the Court that Defendant "filed an
amended tax return for 2009 and 2010 to address the [$] 195,
000. The IRS may have issues as to whether it was done
correctly, but there has been an amended tax return filed
this year." Id., p. 23.
contends that the Government engaged in prosecutorial
misconduct at sentencing when it misrepresented to the Court
through argument and testimony that Defendant did not file
amended income tax returns in November 2014, that he lied
when he said that he did file them, and that counsel
erroneously suggested that the IRS lost them.
well established that the prosecution's knowing use of
false testimony violates due process, Giglio v. United
States, 405 U.S. 150, 154 (1972), and that a prosecutor
has a duty to correct false or misleading testimony when it
comes to his attention. Napue v. Illinois, 360 U.S.
264, 269 (1959). It is a defendant's burden to prove that
the testimony was false or misleading, that the prosecution
knew it, and that the testimony was material.
sentencing hearing record in the instant case reflects the
following preliminary remarks by the Government:
We believe the issue that this Court is being asked to
address here today [is] ... whether there is sufficient
evidence to establish that [Defendant] has not fully accepted
In this instance, we believe the evidence will show that the
reason he should not be held to have accepted responsibility
is because he has continued to engage in criminal conduct. In
this case, what we're alleging is that, as a result of-
he claims that he filed tax returns in November of this year
- of last year, 2014.
We've made an attempt to verify that those returns
had been filed. We found no record of them. In an
attempt to remove that issue from consideration, we asked the
defendant to refile those returns, the exact same returns he
claimed he had filed. And that was done on January the 9th of
this year with Agent Cory L'Heureux's assistance at
the Internal Revenue Services Building.
It was at that time that we discovered that the tax return -
three of the tax returns that had been provided to the
government as having been filed in November of 2014 were not
the tax returns that had actually - were now being
represented as being filed.
(Docket Entry No. 54, pp. 12-13, emphasis added.)
for Defendant responded with the following:
DEFENSE COUNSEL: Judge, if I may, I believe the basis for -
and to give the Court just a real brief kind of factual
timeline, [Defendant] was indicted in July of 2014. He pled
guilty in -1 believe it was August of 2014 to underreporting
his income in terms of the variable pay and the $195, 000
amounts that he received. He amended his returns in November
of 2014 consistent with that plea, where he included that
income in his returns. You know, why the IRS can't
[find] returns that he mailed to them I have no idea.
So we get a call last week, the IRS says they can
'tfind the returns. Well, so what [Defendant] does
is he goes to his CPA, Mr. Trappio. He gets another copy of
the same returns. He - Mr. Trappio signs them, [Defendant]
and his wife signs them, and he takes them to Agent
L'Heureux and turns them over to him.
Id., pp. 14-15, emphasis added.
hearing, the Government presented the following testimony of
IRS criminal investigations special agent Cory Joseph
THE GOVERNMENT: Okay. You've heard assertions by
defendant's counsel that the defendant filed amended tax
returns in November of 2014.
THE GOVERNMENT: Based on those records and based on your own
investigation, is there any evidence that the IRS has ever
received any tax returns filed by [Defendant] on or about
Id., p. 162. In imposing a thirty-six month sentence
on Defendant, this Court stated that, "I do not find
[Defendant's] testimony credible. I think it reflects
that he has not been forthright with the Court, or with the
IRS about the African art, or about his income tax returns,
and, accordingly, I do not think acceptance of responsibility
can be awarded." Id., p. 229.
subsequently filed a motion for new trial/sentencing,
purporting to present new evidence and explanations for
damaging evidence and testimony that had been introduced at
sentencing. Defendant amended the motion approximately two
months later, stating that the IRS had recently found
Defendant's amended returns, and that the IRS had
received them in November 2014, consistent with
Defendant's testimony at sentencing.
Court initially set the motion for a hearing, but later
canceled the hearing and denied the motion for lack of
jurisdiction. In denying a new ...